Saxon tithing-men in America. Read before the American Antiquarian Society, October 21, 1881

IV

SAXON TITHINGMEN

IN AMERICA

" Imnosuerunt justiciarios super quosqne x frithborgos, quos decanos possumus dicere,
Anglice autem tycuthe-heved vocati sunt, hoc est caput x." — Law of Edward the Confessor.

" Praesit autem singulis hominum novenis decimus." — Law of He.nry I.

, "A Tythingman in each Manor, a Constable in each Hundred." — Bacon, Laws of
Maryland, 16S8.

"See to it that there bee one man appointed to inspect the ten families of his neigh-
hours, which tything man or men .... haue power in the absence of the constable to
apprehend . . . ." — Colonial Law of Massachusetts, 1677.

Tithingmen are. still annually chosen in the Town-Meetings of Northampton,
Massachusetts.— Town Records, 1882.

"The History, of Institutions .... abounds in examples of that continuity of life,
the realisation of which is necessary to give the reader a parsonal hold on the p ist and
a right judgment of the present. For the roots of the present lie deep in the past, and
nothing in the past is dead to the man who would learn how the present comes to be
what it is." — Stubbs, Constitutional History of JKnylanil.

JOHNS HOPKINS UNIVERSITY STUDIES

IX

HISTORICAL AND POLITICAL SCIENCE

HERBERT B. ADAMS, Editor

History is past Politics and Polities present History. — Freeman

IV .

SAXON TITHINGMEN

IN AMERICA

Read before the American Antiquarian Society, October 21, 1881

BY HERBERT B. ADAMS, Ph. D.

BALTIMORE

LISHKD BY THE JOHNS HOPKISS UNIVERSITY

February, 1883

JOHN MURPHY A CO., PRINTERS,

BALT1MOUK.

TITHINGMEN.

THE office of Tithingman has never been satisfactorily
explained. New England traditions describe this institution
only in its later ecclesiastical form, which was by no means
its primitive character even in this country. The oldest
people in New England remember the Tithingman as a kind
of Sunday Constable, whose special duty it was, in the old
parish meeting-house, to quiet the restlessness of youth and
to disturb the slumbers of age. Many are the tales which
grandfathers can tell concerning this ancient watchman of the
congregation, who saw to it that all persons were attentive
except himself, and who occasionally broke the peace by
sharply rapping with his tune-book and pointing at some
whispering boy, or else by patrolling the aisles to arouse
sleeping saints by means of his black pole, tipped at one end
with brass.1 In some churches there were two or three of

1 This was the old English Tipstaffe, an emblem of the constabulary office,
and representing the person of the King. We shall consider the subject of
the Tipstaffe or Black Rod more particularly in a paper on " Constables."
By the Province laws of Massachusetts (I. 155, 329) Tithingmen were re-
quired to " have a black staffe of two feet long, tipped at one end with brass
about three inches, as a badge of their office." We find these black staves
mentioned in local town records, e. g., in the town records of Salem, in 1646,
i. 147 ; in the town records of Groton, edited by Dr. Green, i. 19, Item, "toe
black staffe," three shillings sixpence. Survivals of these black wands have
been seen by the writer in actual use by special constables at Amherst Col-
lege Commencements, which are still held in the old parish church. The
use of wands, with ribbon tips, by ushers, is only an aesthetic transformation
of the ancient Tipstaffe. It is said that in some early New England parishes,
the Tithingman's rod was tipped at one end, not with brass, but with a
squirrel's tail. This end was used in awakening women. The other end
was a deer's hoof, which carried sharp conviction to men and boys.

1

2 Tithingmen.

these grim, vigilant Tithingmen. It is said that one or two
of them sometimes sat under the very shadow of the pulpit,
facing the congregation.1 But more usually one Tithingman
sat at each door of the meeting-house to keep out dogs, and
one often sat in the gallery to keep in boys.2

From original town records it appears that it was the duty
of the early New England Tithingman, not merely to pre-
serve order in the meeting-house, but to see to it that every
one went to church. The Tithingman was a kind of eccle-
siastical " whipper-in." After looking over the congregation
to find if any seats were vacant, the Tithingman would steal
out and explore the horse-sheds, the adjoining fields and
orchards, the inns and ordinaries, and even the Bouses of the
village, in order to search out skulkers from divine service.
According to the town records of Salem, it is clear that as early
as 1644, in that village at least, two men were "appointed
euery Lord's day to walke forth in the time of God's wor-
shippe, to take notice of such as either lye about the meeting-
howse wthout attending to the word or ordinances, or that lye
at home or in the fields, w'thout giuing good account thereof,
and to take the names of such persons & to present them to
the Magistrate, whereby they may be accordiuglie proceeded
against."3

A study of the statutes of the mother country, of the period
immediately preceding the Puritan migration, shows that the
custom of enforcing attendance upon church services was by

1 Blood. History of Temple, N. H., p. 87.

*In the town of Salem, the Tithingmen or Constables, used to see to it
that no boys escaped from church and that no dogs slunk in. The " Dog
Whipper" was a regular institution in certain old English towns, notably
in Exeter and Congleton (in Chester). Mr. Edward A. Freeman has called
our attention to a curious law of Edgar (see Thorpe's Ancient Laws and
Institutes of England, ii. 251), whereby parish priests were to see to it that
no dog should enter church, nor yet more a' swine, if it could possibly be
prevented !

3 Town Records of Salem, 131, part 1, 1634-1659, published in the His-
torical Collections of the Essex Institute, second series, Vol. I.

Tithingmen. 3

no means original with the settlers of Xew England. By an
Act1 passed in the reign of James I., all people were obliged
by law to "repaire every Sunday" to church, under penalty
of twelve pence for every absence. Upon sufficient informa- >.
tion, given of course by the Parish Constable or Tithingman,
the justice of the peace issued*a warrant to the church warden
to distrain goods, if necessary, in collecting such parish fines.
All servants, sojourners, and strangers within a man's gates
were brought under the operation of this law, so that the
custom of Sunday inspection of every household must have
been in vogue in Old England, long before it was revived at
Salem. These laws requiring church attendance are of very
ancient standing. By the first Act of Elizabeth's reign,
"every person and persons inhabiting within this Realme —
shall diligentlye and faithefully, having no lawfull or reasona-
ble Excuse to be absent, endevour themselves to resorte to
theyr Parishe Churche or Chappell accustomed — upon every
Sondaye and other dayes ordeined and used to bee kept as
Holy days, and ther tabyde orderlye and soberly during the
tyme of the Common Prayer, Preachinges and other Service
of God — upon payne of punishment by the Censures of the
Churche, and also upon payne that every person so offending
shall forfeite for every suche oifence twelve pens, to be levied
by the Churchewardens of the Parishe — to thuse of the Poore." 2
The Church of England and its Puritan reformers can claim
no monopoly in this kind of legislation, for it roots far back
in the middle ages in the earliest Catholic laws of England
against irregular attendance upon conventicles contrary to the j
Catholic faith, especially against the meetings of Lollards.3
In early Xew England, the execution of the laws for the

1 Statutes of the Realm, 4 Jac. I. c. v.

'Statutes of the Realm. 1 Eliz. c. 2, III.; cf. 23 Eliz. c. i. and 35 Eliz.
c. i.
3 Rolls of Parliament, III., 467, 583 ; IV., 24.

4 Tithingmen.

observance of the Sabbath in other ways than church-going
was intrusted to the local Tithingmen. Travel on that day
was strictly forbidden. There are many persons still living
who can remember that the parish Tithingman once dis-
charged the pious function of stopping all unnecessary riding
and driving on Sunday. An amusing story is told of fhe
writer's grandfather, who was Tithingman for his parish in
Amherst, Massachusetts, and notoriously strict in the dis-
charge of his office both in church and out. Early one
Sabbath morning he saw a man driving past his house, with
a little hair trunk in the back end of his wagon. Suspecting
that the man was upon a journey, the Tithingman hailed
him : " Sir, do you know that travel on Sunday is forbidden
by law ? " " Yes, sir," said the stranger in a somewhat
melancholy tone. The Tithingman caught the idea. " Of
course," he feaid, " in case of sickness or death, a Sabbath
journey is sometimes permitted/' The traveller replied in
a subdued manner, " my wife is lying dead in the town just
above here." " Oh, well," said the Tithingman, "you can
drive on." The man drove on a safe distance, then looked
back and called out : " She has been lying dead for twenty
years ! "

The law against Sunday travel has been rigidly enforced,
in one way or another, by Tithingmen, Constables, local
police, or local opinion, down to the present day in many
parts of New England. The late Brasseur de Bourbourg,
who made Mexican antiquities his life study, once told the
writer of an unhappy experience in Boston forty years ago,
in trying to procure a carriage on the Sabbath, for the sake
of visiting some Catholic dignitary. But neither Catholic
nor Protestant England has set Puritan New England a libe-
ral example in the matter of Sunday laws. Moncure D.
Conway, in a recent letter to the Cincinnati Comma-rial nar-
rates the serious difficulty encountered by three American
travellers in attempting to procure a Sunday dinner in Lon-
don, and that after attending church. Not only are Sunday

Tithingmen. 5

accommodations for travellers very much restricted to this day
in many parts of old England, but travelling itself on the
Sabbath has been more or less restrained by law, ever since
the time of the Saxon kings, in whose good Catholic reigns
Sunday used to begin on Saturday at sunset, and close Sun-
day evening.1 The statutes of England at the time the Puri-
tans came over are full of legislation against breach of the
Sabbath by travellers, traders, drovers, butchers, laborers,
boatmen, wagoners, and by conveyances of every descrip-
tion.

From the colonial laws of Massachusetts it appears that
the functions of the Tithingman wrere not restricted to the
arrest of " all Saboath breakers," but extended to the inspec-
tion of licensed inns for the sake of discovering " disorderly
tiplers " on the evening of that day or " at any other time "
during the week. He could carry offenders before any mag-
istrate and commit them to prison "as any constable may
doe." For Sunday offenders was reserved the special dis-
grace of imprisonment in the town " cage " which was " set
up in the market place." 2 Even by such links as these are
the towns of New England bound to old English parish life.3
The expression jail-bird has some significance in the light of
the evolution of prisons from cages. The use of the pillory
and the stocks in punishment for drunkenness are similar
links of parish habit. The very liquors that New England
Tithingmen were instructed to seek out in unlicensed houses
or to obtain a satisfactory account of in regular inns, afford
as suggestive a commentary upon the English origin of
intemperance in New England as does the mention of beer in
the Norse sagas of Vineland upon the Teutonic origin of the

'Lingard. History and Antiquities of the Anglo-Saxon Church, I.,
309-11.

2 Records of Massachusetts, v. 133.

3Palgrave, English Commonwealth. Anglo-Saxon Period. Vol. ii., p.
clxvi.

6 Tiihingmen.

first white settlers of America. "Strong beere, ale, cider,
perry,1 matheglin,2 rtimme, brandy/'3 these things all have a
very English smack. Legislation against the excessive use of
these drinks did not begin in New England. The Puritans
of Massachusetts struggled against intemperance as did their
English fathers before them, and in precisely the same way,
by fines and penalties, by laws executed through " Consta-
bles, Churchwardens, Headboroughes, Tithiugmen, Alecuu-
ners and Sydemeu," as described in the act of the fourth year
of King James I.4

It is perhaps not generally known that the office of
Tithingman in early New England was very like that of a
parish constable, of which office, indeed, the former is the
historical prototype. In Massachusetts, and elsewhere in
New England, the two institutions long continued to exist
side by side, although as far as local and colonial records
give any decisive evidence, Constables were appointed long
before Tithingmen. But the latter is by far the more
ancient office in the mother country., and it may have been
revived by local hamlets in New England, years before it
was formally recognized in town or^colony records. The
Tithingmen had many functions in common with Constables.
Both endeavored to repress tippling, gaming, night-walk-
ing, strolling, begging, roaming streets or fields, and idle-
ness in general. They were to see to it that every man
was about some lawful and useful business. They restrained

1 A liquor prepared from the juice of pears, like cider from apples.

2 A fermented liquor made of honey and water boiled together. The
name Metheglin is Welsh and is derived from medd (mead) and llyn
(liquor). It is one of those familiar household terms which have come
down to us from that " exterminated " race, the Kelts. Words like dad,
babe, lad, lass, gown, flannel, clout, crock, cabin, basket, bran, flask, mat-
tock, are collectively stronger evidence of Keltic influences surviving in
Saxon homes than even the above home-made drink.

3 Records of Massachusetts, v. 240.

••Statutes of the Realm, 4 Jac. I. c. v. Cf. I. Jac. I. c. 9.

Tithingmen. 7

butchers and drovers from cruelty to animals, and kept boys
and "all persons from swimming in the water."1

The Tithingman may be distinguished from the Constable
by the fact that the former's duties related more especially to
the control of family life and of the morals of his neighbor-
hood. The Tithingman's power came nearer home than did
that of the Constable ; it reached over the threshold of every
family in the hamlet; it was patriarchal, fatherly, neighborly,
in the strictest sense. The Tithingman visited Cotters to see
if they kept Saturday night. The Tithingman saw to it that
family government was maintained ; that all single persons
were joined to some family ; that children and servants were
properly taught and trained at home; that the same were
kept from all disorderly, profligate, idle, uncivil and rude
practices abroad ; in short, that the whole community grew
up as one united family in the nurture and admonition of the
law.2 The Tithingman was the father of the hamlet; he felt
himself personally responsible for the character and conduct
of all households in his neighborhood. In point of fact, the
Tithingman was held strictly to account by the Selectmen, or
Townsmen, for the presence of any new-comer into his hamlet.
By a town order of Dorchester, in the year 1678, it was re-
quired " that the tithingmen in their seuerall presincts should
inspect all inmats that doe come into each of their presincts,
either single persons or famelies, and to giue spedy informa-
tion therof vnto the Select men from time to time or to some
of them that order may be taken about them." 3

1 See references to next paragraph.

1 Records of Massachusetts, v., 241. Acts and Resolves of the Province
of Maasachusetts Bay, i., 58, 59, 60. Hudson's History of Lexington, 69.

3 Fourth report of the Record Commissioners of Boston, Dorchester Town
Records, 223. Compare the duty of constables as stated in the statute of
Winchester (1285) to "present all such as do lodge strangers in uplandish
towns, for whom they will not answer." Statutes of the Realm, i., 98.

8 Tithingmen.

The Tithingmen were not appointed by the Selectmen, and
possibly they were not originally chosen in town meetings,
but elected by neighborhoods or hamlets.1 By an Act of the
General Court of Massachusetts in 1679 " the selectmen of each
toune take care that ty thing men be annually chosen in their
seueratt precincts of their most prudent & discreet inhabitants,
& sworne to the faithfull discbardge of their trust."2 Tith-
ingmen were empowered, like Constables, to assist one another
in their several precincts, " and to act in one anothers precincts
w;th as full power as in their oune, and yet to reteyne their
speciall charges w'thin their ouue bounds."3 It is a very
remarkable fact, which, as far as we know, has entirely escaped
attention as regards its historical significance, that the Tith-
ingman of Massachusetts was originally the head man of a
neighborhood of ten families. This was the revival in all its
purity of the Saxon Tithing, an institution more ancient than
towns or parishes, a patriarchal institution underlying all
local forms of Saxon self-government. It was the unit of the
Hundred, which archaic type of organization is still known
in Delaware and remembered in Maryland, a subject which
we shall soon investigate. In 1638 a bill was introduced into
the General Assembly of Maryland providing for " a Tything-
man in each Manor " and " a Constable in each Hundred." 4
There can be no doubt as to the perpetuation of the Saxon
Tithing in New England, although in the South it does not
appear to have been so common as the Hundred. By an
Act of the Massachusetts Colony as late as 1677 the select-
men of every town then existing in Massachusetts were
ordered "to see to it that there bee one man appointed to
inspect the ten families of his neighbours."5 Such was the

1 In later times, Tithingmen were always elected in town meeting. See
Acts and Resolves of the Province of Massachusetts Bay, i., 155, 328.

2 Records of Massachusetts, v., 240.
» Ibid. 155.

4 Bacon, Laws of Maryland, 1638, ch. ii., 12.

5 Records of Massachusetts, v., 133.

Tithingmen. 9

original character of the Tithingman's office in New Eng-
land as well as in Old England. Arnold has probably gone
wrong in his History of Rhode Island1 in connecting the
duty of Tithingmen with that of collecting tithes. The cor-
respondence of names was purely accidental. In this view,
we are supported by Mr. Edward A. Freeman, who says
there is no historic connection between Tithes and Tithing-
men.

In Plymouth Colony, the Saxon Tithing was reinstated
for the government of the Indians. It was ordered that in
each town where Indians dwelt that every, tenth Indian
should be appointed Tithingman by the Court of Assistants.
His duty was to have the care and oversight of his nine
men and to present their faults and misdemeanors to a so-
called "overseer," who received his commission from the
governor.2 This was precisely like the duty of the Tithing-
men of Old England at the time the Pilgrims came over.
English Tithingmen were required by law to report to
the justice of the peace the names of all rogues and vaga-
bonds apprehended, punished or sent to the house of cor-
rection. Courts of law were actually introduced among the
Indians of Plymouth Colony, the wrhite settlers considering,
very wisely, that such a course would have " a good tend-
encye to the ciuilliseing of the said Indians."3 In a letter of
the Reverend Mr. Treat, of Eastham, to the Reverend
Increase Mather, this good missionary remarks, that there
are five hundred Indians in his township. " They4iave four
distinct assemblies, in four villages, in which they have
four teachers of their own choice. . . . There are also six
justices of the peace, or magistrates in these villages, who
regulate their civil affairs, and punish criminals and trans-
gressors of the civil law. They have three stated courts,
and other inferior officers."4 These were probably Tithing-

1 Arnold, Historj of Rhode Island, ii., 161.

2 Plymouth Colony Laws, 253.

3 Ibid., 239.

4 Pratt, History of Eastham, Wellfleet and Orleans, 38.

10 Tithingmen.

men. Indians, like white men, were strictly watched on the
Sabbath. They were forbidden to hunt or fish, to plant or
hoe corn, to carry burdens, or " to doe any seruill worke on
the Lord's day."1

There are some rather curious facts concerning this con-
dition of practical Indian serfdom in the towns of Plymouth
Colony. By a system of courts and Tithingmen, the Indians
were brought as completely under the subjection of the
whites as were ever the subdued Britons under the Saxons,
or the conquered Saxons under the heel of their Norman
lords. And \t is very interesting to observe that, in all
three instances, the servile population was held down by
the very same means. Indians were not only restrained
from their natural freedom by these Tithingmen, but were
to a great extent reduced to " seruill worke " and the
"carrying of burthens," at first, probably, by a kind of
voluntary enthrallment for the sake of protection, like the
Saxon freemen, then by the slowly increasing pressure
of the law. The following extract from the Plymouth
records is very interesting in the light of comparative
jurisprudence, particularly in the light of the Fugitive
Slave law, " if any Indian whoe is a servant to the Eng-
lish shall run away amongst any Indians, such Indians
whither such a runaway Indian is come, shall forthwith giue
notice of the said Runaway to the Indian Constable [or
the Tithingman] whoe shall immediately apprehend such
Indian servant, and carry him or her before the Ouerseer
or next Majestrate, whoe shall cause such servants to be
whipt and sent home by the Constable to his or her

master, whoe shall pay said Constable for his service ."2

It is also worthy of note that Indian captives, taken in war,
were sent South and sold as slaves to the Bermudas.3
Indians were also sold for debt or theft, at public auction,

1 Plymouth Colony Laws, 60.

2 Ibid., 255.

3 Ibid., 242. King Philip's son was sold into slavery in the Bermudas.

Tithingmen. 11

by the Constable of Plymouth towns.1 We have in New
England an interesting survival of this old Saxon custom in
the practice of farming out the labor of the town's poor to
the highest bidder. Convict labor, southern chain-gangs, and
Delaware whipping-posts, all repose upon the same solid
Saxon ground, servitude to the law. It is folly to heap re-
proaches upon the Pilgrim Fathers or upon any generation
of men. We Americans, whether in the North or at the
South, are of the same English blood; we have inherited
kindred institutions, with much the same virtues and about
the same vices.

Tithings and Tithingmen were no development of New
England Puritanism. These institutions for the strict and
wholesome government of neighborhoods were transmitted
to us from the mother country. We may perhaps discover
the first step of the transmission process in the instructions
given to Governor Eudicott, in 1629, by the Massachusetts
Company while they were yet in England. This business
association of honorable and enterprising Englishmen, who,
according to their own accounts, provided for New England
" Ministers, men skylfull in making of pitch, of salt, Vyne
Planters, — Wheat, rye, barley, oates, — stones, of all sorts of
fruites,"2 this thoughtful Company provided also the seeds
of English self-government in Towns and Tithings. They
said to Endicott by letter, "wee hope yow will fynde many
religious, discreete, and well ordered persons, wch yow must
sett over the rest devyding them into families, placing some
wth the ministers, and others under such as, beeing honest
men (and of their owne calling as neere as may bee) may haue
care to see them well educated in their generall callings as
Christians, and particuler according to their seuerall trades or
fitness in disposition to learne a trade."5 To any one familiar
with the English law of that period concerning the training

Laws, 237.

2 Records of Massachusetts, i., 24-5.

3 Ibid. 393 ; cf. 397, 400, 405.

12 Ttthingmen.

of servants and apprentices, the above instructions to Endicott,
which are repeated over and over again, will appear to be only
the natural outgrowth of the family regulations of the mother
country.

In the library of the Massachusetts Historical Society at
Boston is preserved a curious little volume in old English
black-letter, on "The Dvties of Constables, Borsholders,
Tythingmen, and such other lowe and Lay Ministers of the
Peace, by William Lambard, of Lincolnes Inne, Gent, Lon-
don, 1614." Published before either Pilgrims or Puritans
came over and possibly brought to this country by one of
the first settlers (for another of the writings of this same
William Lambard was owned by Adam Winthrop and was
brought over by his son, Governor John Winthrop, together
with the Charter of Massachusetts), the above treatise must
be an important and trustworthy source of information as to
the exact nature of these offices in Old England at the
period of their transmission to the New World. It appears
that there were many variations of the name of Tithingman
in the mother country, just as in the Town Records of
Groton, carefully edited according to the original spelling,
by Dr. Samuel A. Green, we find a great variety of terms,
from Tidingman and Tighiug man to Tiethengman and
Tiethenman. l In Saxon Law we find Tineman, Tynmanna,
Teothungman, Teothungmannus. In mediaeval Latin occur
Decaiius, Decimus, Decimalis Homo. We also find Head-
Borough, Head-Boroughman, Borough Elder, Borsholdder,
(Borhs-Ealdor) or the Elder of the Pledge, Chief of the
Pledge, Capitalis, Princeps Plegii, and the like. These
names we have gathered from many different sources, but
they are all intelligible in the light of the following extract
from Lambard's Constable : " Now whereas every of these
tithings or boroughs did use to make choice of one man
amongst themselves, to speak, and to do, in the name of

1 Green. The early Records of Groton, Massachusetts, 101, 108, 112,
116, 125.

.Tithingmen. 13

them all; he was therefore in some places called the Tyth ing-
man, in other places the Borough's elder (whom we now
call Bors-holder), in other places the Boro-head or Head-
borough, and in some other places the Chief-pledge ; which
last name doth plainly expound the other three that are next
before it ; for Head or Elder of the Boroughs, and Chief of
the Pledges, be all one."

This extract from Lambard we have taken from Toulmin
Smith's work on the Parish (230), showing that Lambard is
recognized as good authority by one of the best modern
writers upon the subject of English local institutions. Black-
stone based his account of "Constables" and "Justices of
the Peace" upon Lambard, and scarcely ever went back of the
latter's authority. But Lambard while trustworthy in mat-
ters belonging to his own time, is to be read with great cau-
tion and in the light of modern research as regards all ques-
tions of Saxon antiquities. The following extracts from
Lambard we have made from the edition of the Duties of
Constables, now preserved in the library of the Massachu-
setts Historical Society. He says, " In some of the West-
erne parts of England where there be many Tythingmen in
one parish, there only one of them is a Constable for the
King, and the rest do serue but as the ancient Tithingmen
did." Lambard also says, " In some shires, where euerie
Third borow hath a Constable, there the officers of the
other two be called Third borowes." The latter office is the
same as that of Tithingman. Although not everywhere
taking the name of Petty Constable, which was a term
introduced by the Normans, the Saxon Tithingman acquired
under the Norman regime certain constabulary functions,
and these we have partly _noticed in our account of the
New England Tithingman. Lambard says the Tithingmau
really combined two offices "the one being his ancient and
first office, and the other his later made office. Upon the
basis of Qriginal^records and of an unpublished manuscript
account of constabulary duties, which was brought over to

14 Tithingmen.

this country by one of the early settlers of Dorchester, we
shall treat of the office of " Constables " in a special mono-
graph, to be published by the New England Historic-Gene-
alogical Society.1 AVe are here concerned with the ancient
Tithingman, who was the father of the Norman petty con-
stable and the grandfather of New England selectmen.

According to Lambard, the ancient office of Tithingman
was headship of the Frank-pledge. This is not the whole
truth for the institutions of Tithing and Tithingmen are
older than that of Frank-pledge. Canon Stubbs2 and George
Waitz3, the most recent authorities upon English and Ger-
man constitutional history respectively, maintain that, before
the Norman conquest, there is no positive proof of the exis-
tence of collective responsibility for crime committed within a
Tithing. On the other hand, Palgrave4 and the older authori-
ties are inclined to discover germs of the system of Frank-
pledge even in Anglo Saxon times. By a law of Canute,
every freeman who desired to enjoy the privilege of exculpa-
tion by the oath of his friends or the protection of Wer-geld
(money payment for injury) was to be enrolled in a Hundred
and in a Tithing; he was to be brought under pledge or
" Borh," and this was to hold him to right. The term Frank-
pledge is a vulgar corruption of the Saxon Frith-borh or peace-
pledge. Whether or no the outgrowth of Saxon beginnings,
this institution in Norman times was certainly the collective
personal pledge of ten or more men to their lord. The idea of
associate responsibility is here of more importance than the

1 Historical and Genealogical Register, April and July, 1882.

2 Stubbs' Constitutional History of England, i., 87.

3 Waitz, Deutsche Verfassungsgeschichte, i., 458 (ed. 1865.) "Waitz
takes strong ground : " Es gab keine Gesammtbiirgerschaft unter den
Angelsachsen, weder fur das AVergeld nock in irgend welchem andern
Sinn, weder vor noch nach Aelfreds Zeiten."

4 Palgrave, English Commonwealth, part ii., cxxiii. "The system was
developed between the accession of Canute and the demise of the Con-
queror; and it is not improbable that the Xormans completed tvhat the
Danes had begun."

Tithingmen. 15

mere number, for as many as eighty men were sometimes
admitted into one Tithing. Ten was the least number allowed
in Frank-pledge.1 Probably the Normans infused greater
energy into the Saxon Tithing and gave to the idea of Frith-
Borh a more strictly collective sense, as a better surety for the
preservation of the peace. 2 The old Saxon Tithingman cer-
tainly became the Borhs-Ealdor (the Borsholder of Lambard)
which signifies the same as the Elder or Chief of the Pledge.
The custom of Frank-pledge and the relation of Tithing-
man to the same are well described in the laws of Henry I.
and also in those of Edward the Confessor, both of which
collections, however, belong to a period later than the time
of the kings whose names they bear. In the laws of Henry
there is an ordinance relating to the Hundred, giving special
authority, if necessary, to all freemen, whether retainers or
men having their own hearthstone (heorthfest\ to convene
twice a year in their own Hundred, for the purpose of
ascertaining whether the Tithings are full, whether any have
withdrawn, if so, how and why, and whether any have
been added. It was enjoined, moreover, that a Tithingman
(decimus) preside over every nine men, and one of the better
sort over every Hundred, who should be called an Alderman
(aldremannusY and take diligent care to promote the execution
of law, whether human or divine.4 The law of Frank-

1 Palgrave, ii., cxxv.

2 Dr. Reinhold Sohmid, in his edition of the Gesetze der Angelsachsen
(ed. of 1858, p. 649) culls attention to the fact that we have no evidence
of the Normans possessing any such institution as Frank-pledge in Nor-
mandy and says : " So weit unsere Kunde von dem Verhaeltniss bis jetzt
reicht, bleibt, daher der angelsaechsische Ursprung der Zehntbuergerschaft
das Wahrscheinlichere." To this conclusion we had already come before
discovering Schmid's note upon " Rechtsbuergschaft," but we gladly rest
our results upon his solid authority.

3 " Vocabantur eldereman, non propter senectuten sed propter sapien-
tiam." Law of Ed. Con. (Thorpe i., 456.)

4 Ancient iuws-and Institutes of England, i., 515; also in Stubbs' Select
Charters, 106.

16 Tithingmen.

pledge, or Frith-Berg, ascribed to Edward the Confessor, was
not framed until the twelfth century. We adopt Kemble's
translation : " Another peace, the greatest of all, there is
whereby all are maintained in firmer state, to wit in the
establishment of a guarantee, which the English call Frith-
borgas, with the exception of the men of York, who call it
Tenmannetale, that is, the number of ten men. And it con-
sists in this, that in all the vills throughout the kingdom, all
men are bound to be in a guarantee by tens, so that if any
one of the ten men offend the other nine may hold him to
right." l The custom of viewing Frank-pledge in the court
leet or popular court of the manor, for the purpose of seeing
that the tenantry are properly enrolled in Tithiugs, is said to
prevail in Yorkshire to this day.2

The origin of Tithings, and of their multiple the Hun-
dred, is one of the most obscure questions in the early
history of English institutions. Blackstone and the earlier
writers dispose of the question very summarily by ascribing
the above types of local organization to Alfred : " to him,"
says Blackstone, " we owe that masterpiece of judicial polity,
the subdivision of England into tithings and hundreds,
if not into counties." The monkish testimony of Ingulph,
upon which this widely accepted statement rests, is utterly
worthless upon this point. It was customary in the Middle
Ages to ascribe every good institution either to Alfred or
to Edward the Confessor. If pious monks and popular
opinion are to be followed in institutional history, then
we must ascribe to King Alfred the origin of trial by
jury. As an able critic, presumably Palgrave, said years
ago in the Edinburgh Review,3 if Alfred was really the

1 Ancient Laws and Institutes, i., 450. Kemble, Saxons in England, i.,
249-50.

2 Stubbs' Constitutional History of England, i., 88, note 4.

3 Edinburgh Review (Feb., 1822), p. 289 ; cf. Hallam, Middle Ages, note
vi. to ch. viii., part ]J.

Tithingmen. 17

originator of Hundreds and Tithings, and shires, " he must
also have been the creator of the common law itself, which
only proceeds in conjunction with these divisions." The fact
is, Blackstone and the older writers, Coke, Littleton, Bracton,
knew really very little about the origin of English institu-
tions. The whole science of institutional history is one of
modern growth and can be pursued only in the light of com-
parative politics and of comparative jurisprudence, along lines
of inquiry opened up by such pioneer investigators as Von
Maurer, Hanssen, Nasse, Waitz, Gneist, Stubbs, Freeman,
Maine, and specialists in Anglo-Saxon law. The study of •
Saxon institutions was not possible before the labors of Pal-
grave, Kemble, Thorpe, and Reinhold Schmid in classifying
materials and editing statutes and codices. But with all these
modern facilities, it is not easy to trace out to one's entire
satisfaction the origin of England's early institutions of law
and government.

We find Tithings mentioned in the law of Canute already
cited. We can trace back the institution through several
Saxon reigns, but finally we lose all trace of it. Among the
laws of Edgar, in the ordinance relating to the Hundred it is
ordered that if a thief is to be pursued, the fact is to be made
known to the Hundredman and he is to inform the Tithing-
man, and all are to " go forth to where God may direct them,"
so that they "do justice on the thief, as it was formerly the
enactment of Edmund."1 Here, if we mistake not, we are
upon the historic track of the old Saxon Hue and Cry. We
note from the laws of Edgar that " if the hundred pursue a
track into another hundred,"2 warning is to be given to the
Hundredman there, so that he may join, in the chase. Fol-
lowing a track from one Hundred into another would seem
to imply territorial limits. In the laws of Edgar, it is also
prescribed that no one shall take possession of unknown cattle
" without the testimonies of the men of the Hundred, or of

1 Ancient Laws and Statutes of England, i., 259.

2 Ibid. 261.

18 T'dhingmen.

the Tithingman."1 In the laws of Athelstan, among the so-
called Judicia Ciiitatis Lundonice it is ordered that, in tracing
or pursuing a criminal, every man shall render aid, "so long
as the track is known ; and after the track has failed him,
that one man be found [from one Tithing] where there is a
large population, as well as from one Tithing where a less
population is, either to ride or to go (unless there be need of
more.)"2 This appears to imply a territorial seat even for
the Tithing, as an integral part of the Hundred, as well as a
varying number of inhabitants within the Tithing itself.
* Probably the Saxon Tithing had its origin in the personal
association of warriors by tens and hundreds. Such a decimal
system of military organization existed among various early
Teutonic peoples, if not throughout the whole Aryan family
of nations. Even the Jews fought by tens, and fifties, and
hundreds. Undoubtedly kinship had originally something
to do with the marshalling of hosts. The Homeric warriors
fought under patriarcfial chiefs. The ancient Germans, ac-
cording to Tacitus, were arrayed by families and near kinsmen
(familiae et propinquitates}.3 And it is not at all unlikely
that, after the conquest of Britain, the Saxons settled down in
Ti things and Hundreds upon somewhat clannish principles.
Of course the composition of the host, when levied, would
vary from time to time, but a certain idea of territorial per-
manence would soon attach itself to the Local Tithings and
Hundreds from the very fact of the allotment of lands.
There seems to be great reluctance on the part of German

1 Ancient Laws and Institutes of England, i., 261.

2 Ibid. 233, cf. ii., 499 and Schmid, Die Gesetze der Angelsachsen, 161.

3 Tacitus, Germania, cap. 7. Prof. W. F. Allen, in a note upon this pas-*
sage, in his edition of the Germania, calls attention to the parallel passage
in Caesar, de Bella Galileo, vi., 22, where it is stated that land was assigned
gentibus cognationibusque hominum. " From the two passages, it appears that
the divisions of land, and military divisions, were alike founded upon Kin-
ship."

Tithingmeii. 19

specialists like Gneist and Schraid to admit that the Saxon
Tithing ever became territorial before the Norman conquest,
after which time Schmid,1 at. least, concedes the existence
of the territorial Tithing, although he, like the rest of
the German critics, continues to distinguish very sharply
between the local Saxon Tithing and the purely personal
Frank-pledge. Stubbs, the best English authority upon
the subject of Saxon institutions, says that Tithings of a
territorial character exist to. this day in the western counties
of Somersetshire,2 Wiltshire, Gloucestershire and Worces-
tershire, and in all counties south of the Thames, except
Cornwall and Kent. Stubbs, who follows Pearson upon
this point, says the Tithings of some counties answer to the
townships of others. This statement and the researches of
Pearson, in the text of his Historical Maps of England
during the first thirteen centuries/ uncover a secret which
none of the German writers appear to have discovered.
They deny the existence of a territorial Tithing among the
Saxons, because the name does not occur in the Domesday
Book.4 Toulmin Smith read the secret of the Tithing in his
researches into the history of the English Parish and it will
be as clear as daylight to anyone reflecting upon the natural
relation of the personal Tithing to its lauded domain. A
group of at least ten families, a Tithing of inhabitants, con-
stituted a Saxon Township, which is the secular basis of the
ecclesiastical Parish.

We cannot enter in this connection upon the subject of

1 Schmid, Die Gesetze der Angelsachsen, 648.

2 Mr. Edward A. Freeman says he lives in the Tithing of Burcott,
Somerleaze, Wells, County of Somerset, which Tithing, before the recent
Highway Act of the Poor Law, used to meet and tax itself for local pur-
poses. Notices of the meeting of the Tithing used to he posted, like the
notices of a New England Town Meeting.

3 Pearson, Historical Maps, 50-52.

4 Gneist. Das Englische Verwaltnngsrecht, i., 51. In den unendlichen
Einzelheiten,jwelclie das normannische Domesdaybook giebt, kommen die
Worte decania, decenna, teothing, tything auch nicht ein einziges Mai vor.

20 Tithingmen.

f
the transformations of Tithing, Township, and Parish, but

shall one day do so more fully in papers upon the Origin of
Northern Towns and Southern Boroughs. "We call atten-
tion, however, to a few important and fundamental facts.

1. Many modern places in England, that are recognized
as Tithings, end in the Saxon word Ton, meaning Town,
e. g., the Tithing of Alkington, in Berkley Parish.

2. Many Tithings are geographically identical with
Parishes, although many Parishes often include several
Tithings.

3. Many names of English Parishes end in the Saxon
Ton and correspond territorially with old Saxon Towns.

4. In the later part of the Middle Ages, taxation in
England was levied upon Tithings, Towns, and Parishes;
the existence of ten householders in a township or parish was
the criterion of local liability to taxation.

5. The Tithingman, and his historic kinsmen, the Town
Reeve, and the Parish Constable, assessed and collected
taxes.

6. The Saxon Tithingman became the Norman Petty
Constable. It is a principle of the common law that wher-
ever there is a Petty Constable, there is a Parish.

The following extract from the Laws of Edward the Con-
fessor (Thorpe I., 454), throws considerable light upon the
functions of the English Tithingman in the Middle Ages :
Cum autem viderunt quad aliqui stutti libenter forisfa-
ciebant erga vicinos suos, sapientiores ceperunt consilium
inter se, quomodo eos reprimerent, et sic imposuerunt
justiciarios super quosque x. fritliborgos, quos decanos
possumus dicere, Anglice autem tyenthe-heved vocati sunt,
hoe est caput x. Isti autem inter villas, inter vicinos tracta-
bant causas, et secundum quod foinsfaeturce erant, emenda-
tiones et ordinationes faciebant, videlicet de pascuis, de
pratis, de messibus, de certationibus inter vicinos, et de
multis hujusmodi qua; frequenter insurgunt. Compare

Tiihingmen. 21

Kemble, Saxons in England, I., 253. Spelman (Works,
II., 51) says, " every hundred was divided into many Free-
borgs or Tithings consisting of ten men, which stood all.
bound one to the other, and did amongst themselves punish
small matters in their court for that purpose, called the Leet,
which was sometimes granted over to the Lord of Manours,
and sometimes exercised by peculiar officers. But the greater
things were also carried from thence into the Hundred
Courts; so that both the streams of Civil justice and of
Criminal did there meet, and were decided by the Hundreds
— as by superior judges both to the Court Baron and Court
Leet also." Then commenting on the above law, Spelman
continues, "Edward the Confessor (LI., cap. 32) saith, that
there were justices over every ten Freeborgs, called Deans, or
Tieuheovod (that is, head of ten) which among their neigh-
bours in Towns compounded matters of trespasses done in
pastures, meadows, corn, and other strife, rising among them.
But the greater matters, saith he, were referred to superior
justices appointed over every ten of them, whom we call
Centurions, Centenaries, or Hundredors, because they judged
over an hundred Freeborgs."

In the face of this testimony, it is difficult to understand
how German critics and even Hallam (Middle Ages, ch.
VIIL, part 1) and Stubbs (Const. Hist. I., 90) can doubt
that the Tithingman settled small causes between man and
man. The Selectmen of early New England Towns and
the Parish Officers of Maryland had similar judicial func-
tions. Upon the question of village-judgeship, Stubbs makes
a very prudent modification of his first statement : " The
Tithingman is of course an elective officer. The idea that he
was a sort of village-magistrate is without basis ; although in
a simple community of peasants the office of Constable, for
such seems to have been the position of the Tithingman, was
held in more honour than it is now." Pearson, in his
History of England (I., 252) says, "The only popular

22 Tithingmen.

magistrates in the country were — the Tithing and Hundred
Reeves ; the former were always, the latter mostly, elected
by their respective communes. The smaller questions of debt
and police were probably decided by these men in their
respective courts; the freemen of the Tithing would meet
as occasion required; the Hundred Court was summoned
once a month." In the court of the Tithing we may discover
the germ of vestry meeting and town meeting, and in Tith-
ingmen, the origin of Select- vestry men and Selectmen.

The Saxon Tithingman was the Selectman of the Tithing.
He was an elected officer, like the Petty Constable, who
succeeded him. The mediaeval Tithingman's functions were
patriarchial and authoritative. He was the Town Father in
the true and original sense of that tej*m. His relations were
with families, as in early New England. He watched over
his hamlet as the New England Tithingman watched over his
neighborhood and the congregation. He kept the public
peace; he was arbiter between neighbors and kinsmen; he
regulated the division of lands, the use of pastures and
meadows; he announced the time of harvest and when
enclosures were to be removed or fences put up. He was
a man having authority in a small neighborly way. He
foreshadowed the Petty Constable and the easy-going Select-
men of our modern New England Towns. But the main
idea of his office was the same as that perpetuated in the
original Tithingmen of New England, viz : elective, patri-
archal headship over a neighborhood of at least ten families.
This is the original, fundamental character of the office,
considered as a local institution.

We have found the heart of our subject. We have
stripped off the ecclesiastical tissue, which in later times
enshrouded the New England Tithingman, who is now
undoubtedly dead. We have dissected away the outer
layer of constabulary duties, and have found, in the patri-
archal control of a Tithing, the real mechanism which for

7"!tJi hit/men. 23

many centuries gave snch energetic life to the Tithingman.
The biologists in Baltimore have recently succeeded in isolat-
ing- the mammalian heart, and in keeping it alive, by a trans-
fusion of foreign blood, for hours after the rest of the body
is entirely dead. Possibly by some such method of pro-
cedure, in the case of a live subject like the modern Con-
stable or Selectman, we may derive a more intimate knowl-
edge of that older institution, whose life is how beating on in
kindred forms.

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